Thinking like a Lawyer: Filtering Perspectives [video]

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What do we exactly mean by “thinking like a lawyer”? Can this thinking be achieved without going to law school and spending hundreds of thousands of dollars in tuition fees? The answer is yes. Anyone can “think like a lawyer” by following certain concrete steps as discussed in this lecture.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone, this is Amer Mushtaq from You Counsel.

If you have a legal dispute, you’re not a lawyer, and you do your own legal analysis, legal research and come to a conclusion about your case… whether your case has merits or not… and when the same assessment, same analysis is done by a lawyer both of you may come to fundamentally different assessments of the case. You may believe that you have a very strong case and the lawyer may come back and say to you, that you actually no have case. How does that, if you have done all the research, you’re a smart person… you’ve done, you know, all the things that a smart person can do to analyze your case and you have come back with a conclusion or assessment of your case which is fundamentally different than the lawyer’s… how do you explain that? Most of the time, the answer that is provided is that you are actually not thinking like a lawyer and that’s why you have come from a different conclusion.

So what is this mysterious thing that’s called, “thinking like a lawyer”… is this something that only lawyers can do? Is this something that can be replicated by people who are not lawyers? Is this something that you must spend hundreds of thousands of dollars in tuition fees for law schools or practice as a a lawyer and only then you can achieve it or is this something that you can achieve without actually going to law school and learn how to think like a lawyer. So, this lecture grapples with this question of what is meant by, “thinking like a lawyer” and the answer that I provide is that thinking like a lawyer is pretty straightforward. There are bunch of steps that you need to follow and you will be able to think like a lawyer, you don’t need to be a lawyer to think like a lawyer. You don’t need to spend hundreds of thousands of dollars and then learn the art of thinking like a lawyer. It can be done and in this lecture, I will try to simplify the process that you need to follow and replicate the same results that a lawyer may provide.

So, we begin with a disclaimer, that this course is not legal advice. So, if you have any specific questions, you should contact a lawyer or Law Society of Upper Canada.

So, before we get to what does thinking like a lawyer mean, let’s start with the question of, “what is law”… and in this lecture, we’ll talk about some of the philosophical underpinnings of certain aspects of legal system, but remember that, you know, discussion will be very limited, will be very straightforward and in the end, all of this is going to serve one purpose- that is, how do you actually think like a lawyer… without actually becoming a lawyer or going to law school, right? So, we’ll answer that question, but we’ll get to that in maybe in a bit of a roundabout way because I think there are certain concepts that are important for you to understand. So, what is law, that’s a basic concept that you may have an understanding of- or not- so let’s discuss that.

Basically the law is a set of do’s and don’ts… things that you can do and things that you are not allowed to do. The set of do’s and don’ts that are applied uniformly to a set of people, right? The things that you can do or you’re not allowed to do… and then it becomes a law when it’s applied uniformly- or at least we believe that it’s applied uniformly- that’s sort of the core philosophy of it… over a set of people… and a set of people could be part of a municipality, part of a city, part of a province, or a country and so, the laws, if they’re applied to a set of people uniformly, the do’s and don’ts… they are called laws… that’s that’s what they are… and so, a common example could be, you know, you cannot park on the main streets downtown Toronto in rush hours. That’s the law. Where are you allowed to park? Where are you not allowed park? You are not allowed to move your vehicle, you know, one hundred kilometers an hour on a highway.

So, those are the do’s and don’ts… and the life of a human kind would have been simple if every imaginable action or inaction can be conceived… if anything and everything that a human being can do when the person is alive or not alive, if that can be conceived… we can easily categorize them into a set of do’s and don’ts. You cannot eat your baby, yes, you can eat your baby, you know. Thou cannot steal from your neighbor’s farm. Every imaginable step can be categorized but because there are so many things that human beings can and cannot do… it is impossible to conceive every action or inaction at least impossible in today’s day and age… and so, because it cannot be conceived, we cannot easily categorize them in do’s and don’ts and then make laws about it, right? So, that’s one challenge that do’s and don’ts are not finite… and so we cannot write them down and categorize them.

So, that’s one challenge with the law… and the other challenge with the law, generally, is about information, right? So, when the law says that you cannot kill an animal, you know, is it OK to kill an animal when the purpose is self preservation… when you are consuming the animal for food. Is it OK to kill the animal for the purposes of sports, right? So, things like that and then it comes to the interpretation of what is killing things, you know? If there was an accident and some animals died because of something you didn’t intend to do… does that matter… and so, the interpretation comes into play and the law gets complex… but at the bottom of it, you know, what you want to understand is the law is a set of do’s and don’ts. So, if you understand that, that’s the basic concept of the law, for the purposes of our today’s lecture. Now, the next question comes to mind is… who gets to decide what the law is? Can you and I decide what the law is, who decides that and it depends… if you believe in a different religion and you follow the laws of that religion. Then, it’s the laws decided by God or Gods, if you believe in that… could be decided by prophets and you may follow their laws. Could be decided by a king or a queen of a certain country and they may decide with the laws should be. It could be decided by people in a democratic society, in a democratic society, the fundamental assumption is- and I’m not necessarily a subscriber of that assumption- but, let’s say, a fundamental belief is that in a democratic society the laws are created by the people and the process is that they hire certain members who represent them, the people in legislator, and those individuals get to decide what the law is and those laws reflect the will, the social, the moral fabric of the society, in general. That’s at least what the belief is in a democratic society and some people may argue that the judge gets to decide what the law is or law should be and there may be some value to it, some truth to it, maybe not… but all of these people and many more can decide what the law is.

Now, where does the law get it’s underlying authority, you know? Whether it’s a God, whether it’s the King, whether it’s the people, whether it’s the judge. Where are they getting that authority to decide what the law is? Why can’t you and I decide what the law is or what the law should be… and so, one thing that you want to understand about the law is the fundamental authority of the law comes from its power of coercion… and what do I mean by that? Very simply, if you do not abide by the law, there will be consequences, right? So, you may get penalties imposed, they could be monetary, could be physical but if you refuse to abide by the law there are consequences. So, the law gets its legitimacy, its authority, from the power of coercion that it has… or if you want to put it more crudely, the law has the power of violence over its subjects, right? So, if you have that power of violence over a certain set of people, you can decide what the law is. So, the idea is not to suggest, in any way, that laws authority should be undermined by you, but I think it’s important for you to understand the basics of where the law is coming from and how does the law get to have the authority that it exercises over people.

Now, we said that the law is a set of do’s and don’ts, but what are those do’s and don’ts? Where do they come from.. and at its core, the do’s and don’ts are someone’s perspective. It could be God’s perspective in the scripture, God comes out with the 10 Commandments, “thou shall not kill… thou shall not steal”. It’s apparently God’s perspective, or the Prophet’s perspective, could be the King’s perspective, could be people’s perspective, you know. Could be the judge’s perspective. So, when a member of city council sit down and someone, one member, may come up with an idea that there is too much traffic during the rush hours and it’s hard for the cars to maneuver and therefore, vehicles should not be allowed to park during the rush hour. That is fundamentally a perspective, right.. and then it gets its legitimacy in a democratic society because other people subscribe to that practice and then they decided in the law and then it gets its all the power and legitimacy… but underneath it, what’s most important for you to understand, is that law is someone’s perspective. So law is nothing more than a perspective… and I want to belabour this point a bit because I want you to understand this concept, I want you to digest it, I want you to believe in it because that will help you in thinking like a lawyer when we come down to that part of the lecture.

So, law is nothing but a perspective… and so, why I want to belabor this point is because when you think about the word law, you know? What comes to our mind with respect the law, is the law is absolute. Law is magnanimous. Law is powerful. Law is wrathful. Law is unchanging, right? So, those just law is a fixed concept. So, these are the kind of things that that may come to your mind when you think about the law, but when you think about perspective… you say something has a perspective what comes to your mind, what does it denote? Perspectives could be different, we know that. Perspectives could change and evolve over time, you know that. Perspectives could be different, in different circumstances, different locations, different cultures, different religions etc. right? Perspectives could be many. So, there are a number of things that indicate that perspective does not seem to have that level of power that the word, “law”, you know, denotes… and why it’s important for you to understand because if you understand that law is nothing but a perspective, you will not be ashamed of your perspective. You will not shy away from arguing your perspective, whether that is agreed to by others or not… but at least it is your perspective and you have a right to persuade others, to the judge, that your perspective is the right perspective. So, it’s just a perspective, it’s nothing more than that.

Let me give you another example, you know, hopefully it’s been interesting. Remember the movie it’s called, “First Night” by Richard Gere and in that movie, Richard Gere played the part of the person, if I recall that, correctly… and in that movie, there’s a scene in the beginning where he’s much a fierce looking man, they’re riding on horses, and they come down and lose and plunder a village and set it on fire and there’es women and children who are running around, crying and screaming and whatnot… and then, you know, towards the end of that scene, this man riding on this stallion… fierce looking guy, with his sword drawn and he gets to that place everybody is quiet and silent and he stands, you know, on his horse… sitting on his horse and he says this, “last night men from this village killed three of my people. In reprisal, I have destroyed your village. The border lands have been lawless long enough. Know now that I am the law.”… and so this guy, comes up, and he says, “know now that I am the law”. Imagine if he says all of these words and in the end he says, “know now that I have a perspective” and if he says that, the villagers who were so scared of him will probably smile, smirk, “meh”. You know, “get out of here” kind of concept, right… because the word law has that power that the perspective does not care and yes, we understand that perspective gets that power through the power of authority that is given to it and also the power of violence that it has. So, notice this, when this guy comes in, he first demonstrates to the people that he indeed has the power of violence over all of these villagers. By doing what? By destroying their village. So, he demonstrates, he establishes the power of violence first and then what follows is his claim that he is the law, right? So, the power of violence goes hand in hand with the authority of the law. So, but when he says that, “I am the law”, he doesn’t say, “I have a perspective”, you know, it’s important for you to understand that it it’s just a perspective. Why? Because you have a perspective which may not be the law but it’s a perspective that you espouse and you have a right to persuade others that that perspective should be preferred over other perspectives… and when it comes to a legal dispute. When you realize that law is just a perspective, you will realize that a legal dispute is nothing more than a battle of perspectives. There are many perspectives that may come to a court room and those perspectives fight and then one perspective wins. So, that’s the end. So, there’s nothing more to a legal dispute than a battle of different perspectives.

OK, so let’s explain that by way of an example, what do we mean by battle of perspectives and how does that actually unfold in a courtroom right.. and what can be a better example than a man walks into a bar… and in this situation, the man who walks into a bar is a black man. He lives in Toronto, in 2017, and imagine that this black man on a weekend, on a Saturday evening, he is sitting at his home, he has nothing to do, he turns on T.V., he surfs the Netflix for any shows, doesn’t find anything appealing. He’s having a drink, he doesn’t know what to do with his evening, and the idea comes to his mind, that maybe he wants to travel in the past. Go down to his basement, get in that time machine that he has, and go and have a drink in the past somewhere in the US. So, he goes down to his basement, takes off the covers of his time machine, dusts it off, sits down and puts the timer to the year 1964, and the place that he chooses is Birmingham, Alabama. He wants to go to Birmingham, Alabama in 1964 and have a drink. So, he presses the button and instantly he’s transported to 1964, Birmingham, Alabama. He finds himself by the interstate and he looks at the bar and then he walks into the bar… and he goes to that person and he says to the bartender, “can I have a pint of beer and some wings and something else to eat- fries”.. and he realizes instantly that there’s a deafening silence and he notices that everyone sitting in that restaurant is staring at him. All eyes are focused on him. No one is moving, people are looking at him in amazement and bewilderment and disgust and anger, including the bartender… and the bartender looks at him and says, “we do not serve black people in this restaurant or in the bar, get out of my establishment”… and so, that black person realizes that he doesn’t want to create any trouble there, but he believes since he’s from 2017, that he’s going to go and bring a court action in the courts and then be successful and change the history in 1964. So that, in 2017 people are living in a better world… that’s what his perspective is and what he does is he goes to court.

Now, imagine for the sake of this example, that this is the first time ever in the history that someone has raised this issue before a court. It’s a novel issue, there are no previous cases about a black man asking the court to decide whether it was unfair for a white bar member to deny him beer and food and whatnot. So, this has never been decided, there’s no legislation on it… this is the first time kind of issue. So, reason why we’re doing that is so that you can simplify the example and so you understand this battle of perspectives that I’m trying to explain. Now, because there are no previous cases, there are no legislation, there’s nothing… this never been argued, never been decided. There are at least three perspectives in that court room for the decision making and one is obviously that Black Man’s perspective and he believes that all humankind are equal and everybody is entitled to the service, regardless of the colour of their skin. So, that could be his perspective.

The bar owner may have his own perspective and he will argue that perspective before the judge and then the judge may have his own perspective and it’s going to be a, “his” in 1964, I doubt that there were any female judges or a lot of female judges for that. So, assume that this was a White Male Judge in 1964 and the judge may have a perspective, may not be directly on the issue before him but he may have perspectives that may inform his decision about this specific issue… and so, in this situation, how is this Black Man going to win his case, put yourself in his shoes. What is it that you need to do on a very basic level, to win your case and be successful, right? So, the bottom line is, a Black Man has to pursuade the judge that his perspective should be preferred over the opponent’s perspective, right? Preferred. It doesn’t have to be the right perspective, it doesn’t have to be the judge needs to believe that his perspective is correct. He just needs to prefer between the competition between the perspectives. The Black Man needs to demonstrate or persuade the judge, that his perspective should be preferred over the opponent’s perspective.

So, in order to do that, how does this person go about persuading the judge? What does he need to do. He also needs to make sure that when he is providing the perspective, the perspective should be the one that resonates most with the judge because at the end of the day, it’s the judge who is going to make a decision. So, if he presents a perspective in a way that makes sense to the judge, it’s easy for the Judge to understand, it resonates with his own beliefs… his own understanding of the law. Then, this person has a better chance of winning his case.

Now, the question is if this man needs a lawyer, right? So, imagine we have stripped the judicial system of any legislation at this point. There’s no legislation. There’s no previous cases, nothing. This is a novel issue. Does this person need a lawyer? And I may, if I may sidetrack from here for a bit, and think about how did the legal profession came into existence and I haven’t researched this… so, don’t hold me accountable for it, but if I have to take a guess about how the legal profession came into existence, I can imagine this happened, you know, the legal profession came into existence as follows. Back in 10th century or 9th century or whatever, you are a Farmer… you believe that your neighboring farmer, Peter, stole your cow. You go to the king’s court and you say that Peter stole your cow, you want it back, but you’re not very educated or not educated at all. You’re not good with words, you don’t know how to present your case, you don’t know how to persuade the judge, and so, you find this guy Michael… and you know, that Michael is the judge’s neighbor. They play together, they go fox hunting together, Michael is good with words, you know. So, maybe, I’ll let Michael do the talking for me and persuade the judge… and you know, because he knows him and he’s more persuasive, he may be able to persuade the judge. and so, you know, you go to Michael and say, “Hey Michael, I appreciate your help I’ll give you two chickens if you can please talk on my behalf and persuade the judge” and Michael says, “fine”… and Michael is successful… Michael realizes that you know, “this may be a good idea… why not I do this on a full time basis? And I take people’s cases, whether I win or lose, I still get paid”. It’s a fascinating idea, it’s a win-win for Michael, and so he says, “you know what, I’m going to more on a full time basis”. The judges like the idea too because it’s a familiar face, they understand how Michael presents, Michael understands them, you know? Their kind of on the same you know, same wavelength in terms of the discussions, in terms of the process, so, it makes it convenient for everybody. So, I believe that’s how the legal profession came into existence that someone thought it was a good idea to do this on a full time basis and it evolved from there… and I think someone will do any research on the creation of the profession, I think the answer may not be far from what my assumption is about the creation of the profession.

So, anyway, back to 1964, the question that comes to our mind is that now this person who is going to argue, Black Person, looking to argue his case before a judge- does he need a lawyer? Does this really need a lawyer? So, if I’m in his shoes, the most important thing that I want to figure out, before I go, before the judge is I want to know everything about the judge because that’s the person who’s going to decide my case. I want to know everything, how many slaves does that judge have, how does he treat his slaves, what does his wife think about this case, what is his view of the law, in general. I want to get that understanding.

So, I think the first person I want to hire is a private investigator, who can tell me everything that I need to know about the judge and the other side- the bar owner. So, that I can tweak my perspective appropriately, right? So, that maybe it. I may want to hire a psychologist… I may want to hire a behavioral psychologist who can sit with me in the court, look at the judges face expressions, and give me a sense of what the judge is thinking. That maybe another thing that I can think about. I may want to hire the judge’s friend to be my representative… who may or may not be a lawyer, he may just be a friend but I think that he maybe a persuasive person. So, in all of this, you’re thinking about what kind of support that you need, in order to present your case in a way that resonates with the judge and judge agrees with perspective. That’s all you’re trying to do. So, you’re doing your homework, your due diligence, and in that process, if you need to hire a lawyer- go hire a lawyer… but you don’t need to hire a lawyer just because the person is a lawyer. You are hiring a lawyer here because he could do things for you and present your case for you better and persuade the judge better for you… and if that job can be done by a used car salesperson, then so be it! It doesn’t have to be a lawyer by profession. So, at this point you don’t actually need a lawyer, it’s just a battle of perspectives. If you think that you are a good orator and you convince the judge better- you do it yourself.

So, where does the need for a lawyer, where does the lawyer come in into our legal profession. Here’s how the lawyer fits into all of this, so, when you are thinking about all the perspectives and there’s like an infinite number of perspectives that you can come up with which may support your position… which perspectives are you going to present. You are doing that thinking, and so let me explain to you, where the lawyer fits in by way of an example. So, we’re going to complicate it a little bit. You go to the lawyer and you say, you know, I have this case and can you help me and the lawyer asks you a question, “sir, are you an interstate traveler for commerce”. And you say, “what the hell are you talking about and why does that matter in my case, you know, I just went to the bar and I was refused service” and the lawyer says, “well sir, it does matter because there is legislation called the Civil Rights Act of 1964 that deals with the issue that you’re facing… so, there is a legislation that deals with the very matter, very issue you are raising”. Now a legislation, if you want to understand it, on its very basic level it’s nothing but a perspective. It’s a perspective over an issue that has been codified into law, it’s put in the paper, it’s called legislation. So, there is a legislation the Civil Rights Act of 1964, that you didn’t know about and the lawyer asks you that question. Then the lawyer asks you the question, for example, “where did the incident happen” and you say, “well, the incident happened in Birmingham, Alabama” and the lawyers says, “sir, I’m in New York City… you called me in New York. We cannot commence your court action in New York it has to be done in Birmingham, Alabama. Why? Because there are court procedures”… you didn’t know about court procedure, the lawyer knows about court procedure. So, he says number one, “we have to apply a perspective, a filter of legislation to your perspective”.

So, of all those hundred thousand of perspectives that you may have about why your case is right. Legislation’s perspective is important because that’s what’s made into law and so, let’s find that out. Then the procedural perspective and then lawyer may say that, “oh, this happened in a previous case to someone else” and so what is that called- that’s called a precedent and if you understand how the current judicial system works. A judge is bound by the legislation, a judge is bound by the precedents, the previous cases that have been decided on similar issues, and its bound by the procedure. So, a just judge has these constraints within which he or she is going to decide your case. So, what the lawyer is doing is, the lawyer is saying, “I’m going to review the legislation… you had not thought about it… I’m going to talk about procedure you had not thought about it… you were looking at your case on a very broad level. You being the right, the other side being the wrong… and then the precedent”. A precedent is a very interesting phenomena, right? If you don’t understand, let me mean explain to you what a precedent is. So, a precedent is that if you have a legal issue and it was decided, a similar issue was decided in the past, then the judge who is reviewing your case now, is bound to follow what was decided in the past. It’s a very interesting thing.

So, I mean imagine if you applied to the precedent to science. So, whatever, laws of science were decided or found in the past, you just need to follow them and that’s it, you know. You look towards the past, to decide what is right and what is wrong. Science would never develop. You would never have, you know, the Theory of Relativity or Newton’s Laws of Motion and whatnot because you’re always looking towards the past to decide whether something is correct or not… but in the legal world, precedent is everything. Whatever has been decided in the past, we have this is assumption that it has been decided correctly and we don’t need to do any changes to that as long as it fits into facts that was decided in the past. So, you know, that’s sort of a sinister view of the precedent, it does have some of its advantages. Today is not the time to discuss it, about precedent… but essentially, what the idea of precedent is, if a similar facts case scenario has been decided in the past, the judge needs to simply follow what was decided and decide all future cases on that basis.

So, what does the lawyer do? What did he do in that process? What he did was of, amongst the number of perspectives that you may have brought forward and the lawyer may have added, he simply started filtering their perspectives, right? Filtering the perspectives through the lens of legislation, so, take out the perspective that do not accord with the legislation, take out the perspectives that will not work with the procedure, and take out the perspectives that do not work with the precedent. So, a lawyer’s job is nothing, but filtering perspectives appropriately. So, what kind of filters does the lawyer apply? Legislation was one, procedure was another, and precedent was the third one.

Now, in today’s day and age, you apply the same filters and that’s what thinking like a lawyer is about. So, question number one, if you want to know whether a specific legislation applies to your case, do you really need to go hire a lawyer? Maybe not. If you want to hire a lawyer, fine, you may not need to. All of the legislation that is available in Canada, is available online for free. I refer to CANLII, one of the websites in my lectures all the time. All of those legislations are out there. You can research them, you can Google them, you can find out, you can go to a law library, talk to a reference librarian and get that information. So, if you are willing to do the work, you are able to find what legislation may apply to your case, specific dispute that you may have. Procedures are also available, procedures they are immensely complicated… I do not believe that they are designed for people who can easily understand them… even lawyers at times do not understand what the appropriate procedures are, but they are there. A lot of my lectures are about explaining procedure, at least giving you a sense of, you know, what kind of procedures to worry about, the lectures may not be exhaustive but they give you a sense of what to think about, in terms of the legislation, in terms of the procedure… and so, procedure stuff you can also find it from law libraries… and precedents are also available in law libraries, previous cases that may apply to your fact situation.

So, if you want to apply these perspectives, first of all, you need to understand the most important part is that you’re filtering perspectives, right? So, when the black man, his perspective maybe that, you know, all humankind’s are equal and they should be treated equally. Well is there are legislation that supports that view or goes against that view? He needs to find that out. What is the proper procedure to go before the judge? How do you address the judge, when do you file your complaint, how do you file your complaint? When do you serve it on the other side? These are all parts of the procedure, you can figure that out and then you can figure out if there were any previous cases similar to yours- what did the judge decide in those cases? So, you can find out whether they’re supportive or whether they’re against your case and if they’re against your case, how do you go about differentiating your case from those cases. So, that the judge may not come to the same conclusion. So, you’re applying these precedents, these filters to your case and then finally, when you apply all of the filters these three and other common sense filters… you want to come back a few perspectives, one or two, that will resonate with the judge. So, the whole process of lawyer-ing is about filtering of perspectives and all of if this is not something you need to go to law school. If you take a course in legal research and writing, you can learn this. You can take a course in law school, you can take a course at the law of reference library, you can sign up, and you can learn this. You don’t need three years of law school and a year of articles and whatnot to understand this. As long as you understand that these are the filters that you’re applying to your perspectives about your case.

OK. So, then when you apply those perspectives, what constitutes a winning perspective? Winning perspective is the one that resonates with the judge and when I say resonates with the judge, I don’t mean, you know, that what is the judge’s personal belief and whatnot… it may come across a bit like that but not necessarily because resonates with the judge may mean, that the judge is going to view… let’s say the judge is very focused on the law of contracts and he wants to look up this issue as a contractual issue and so, a better argument before the judge will be a contractual argument… NOT a civil rights argument, right? So, what may resonate with the judge is important, but it’s not to suggest that the judge has any sort of personal views on the basis of which the judge is deciding. Although there are legal scholars who have argued that the judge’s personal views are fundamental in terms of how the cases are decided but not the discussion for today’s lecture. And so, the second part you want to understand is that you want to offer a perspective, generally speaking, that provides the path of least resistance to the judge. Now, remember that judges are not there to make radical decisions. Judicial system is not about rocking the boat here, generally speaking, there are occasions when it does rock a boat a little, although I disagree… but it’s not about rocking the boat, legal scholars have argued, one of the purposes of a traditional system is to maintain the status quo, right? So, when the purpose of judicial system is to maintain the status quo, you don’t want to rock the boat, here. So, you want to offer a perspective, in most cases, that offers the judge the path of the least resistance, without rocking the boat. The judge can get you to where you want to go, the argument resonates, your perspective resonates with the judge and you win. That’s how you sort of streamline, after you’ve done the exercise of filtering your perspectives through legislations and precedent. That’s how you articulate your perspective and hopefully that’s the winning perspective.

Now, I have taken you to 1964 for a specific reason, because there was a case called, “Katzenbach v. McClung” 379 US, 294, 1964. This is a real case, I had fictionalized some of the story, it’s a true story, this is a case that does deal with a black man who goes to a restaurant owned by Mr. McClung and he’s denied service because he’s Black, right? So, brings this action, and he was successful.

So, in this action, Mr. McClung provided this perspective, amongst the perspectives that he argued … this was one of the perspectives, “it is a part of man’s civil rights that he be at liberty to refuse business relations with any person whatsoever whether the refusal rests upon or is the result of whim, caprice, prejudice, or malice”. I think it’s a pretty straightforward argument and I may say, compelling argument, “if I don’t want to serve anybody any food in my restaurant, it’s my right, it’s my liberty to do that” right … and so, that was the perspective, one of the perspectives that Mr. McClung advanced and he was not successful … but watch what was the perspective that was successful on the other side, “and the courts are to set in something like this, discrimination in restaurants posed significant burdens on the interstate flow of food and upon the movement on products, generally. Congress’ solution to this problem was appropriate and within its bounds to regulate interstate commerce [congress solution that the judge’s referring to is the Bill Of Rights Act that I talked about two slides before]”. So, notice this, the court is not the judge is not coming out and saying, “we believe the time has come in 1964 and that all human kids are equal and nobody should be denied service because of a color of their skin or their religion” that’s not what the judge is saying. Judge is saying look to regulate interstate commerce is a legislation that came about and because of interstate commerce – and focus the word commerce, right – interstate commerce, it is important that interstate travellers should not be denied food … and if a Black Man is an interstate traveller he should be allowed to get food from wherever he wants to, right? No rocking the boat here, it’s important. When you want to win your cases – and I’m NOT talking about radical changes that you want to bring to the society – you’re there to win your case before that judge. Bottom line is you want to present a perspective that resonates with the judge, that provides the judge with the path of least resist. An interstate commerce … and if you understand anything about the law in capitalist society, you may understand or may believe that one of the purposes of the law, in a capitalist society is to make sure the commerce is conducted smoothly, right? You bring a case on a commercial list, even now in Toronto, and you will get heard very quickly because note you’re on commercial list right. If you have a sexual harassment case, well, it may follow the procedure of other cases that are in the civil court, right? So, commerce has been considered one of the important functions that a judicial system insures that is protected. So, if your argument, if you believe that that is the argument that somehow you will say, you will present your perspective that somehow enhances the argument about commerce then you may be successful. So, that’s how you want to filter your perspective and present to the judge.

You may come across a judge who is too focused on the law of contracts, right and the judge may believe that, you know, the Fundamental Freedom of Contract Principle which says that, you know, you have a right to enter into a contract with anybody that you want. You know, the Judge may subscribe to that more closely and you may want to come up with a contractual argument. You may want to say to the judge that you know, “through the law of the contract, when someone opens a shop and it’s open for business, that essentially, it’s an offer and when I walk into the shop and present my money that is the acceptance … and the consideration is the food that I get … and so, when I’m complying with a law of contracts, this is the offer, this is the acceptance, there is consideration, I’m entitled … that person is in breach of contract” the judge may like that concept more than the equality argument you may want to raise. So, the important part about all of this is that it’s all about filtering the perspectives in such a way that you can persuade the judge that your perspective is the right one and what we have done in terms of filtering the perspective … I’ve indicated to you that what a lawyer is doing, a lawyer is primarily filtering the perspective through legislation, through precedent, through procedure. Something that you can easily do as long as you understand that that is the exercise that is being done.

So a properly filtered perspective and you consider all of the angles … you consider the angles of the other side, you consider the angles that may come from other parties, you may consider the angle of the judge’s perspective … you consider all angles … not something that you cannot do. You don’t need to be a lawyer to consider all angles, if anything, a philosopher is a better person suited to consider all angles because that’s what they do for a living. It is not an exclusive domain of the lawyer, to do the filtering, and to consider all angles critical thinking is something that anyone – and logical thinking – is something anyone can achieve without spending hundreds of thousands of dollars in law school.

As as long as you know that, the important part of this lecture is for you to understand these are the things, these are the concrete steps that you have to undertake to ensure your assessment of a legal dispute is no different, then an assessment of a lawyer and then you present the argument, you articulate them in a way that your perspective resonates with a judge and then you’re successful.

So, hopefully this lecture gives you a very simple sense, a clear sense, of what is thing called thinking like a lawyer … it is nothing mysterious … it’s nothing complicated and every rational person, every person who has a bit of common sense, an educated person, can do this analysis, can think like a lawyer, you don’t need to spend hundreds of thousands of dollars to get an equal knowledge because it’s a process and you understand the process … you follow the process yourself or you hire someone else to do the process for you whether a lawyer or a reference librarian … it doesn’t matter. You can get to your results that you want and you may be more compelling than any of the people who work in this profession.

So, thank you for watching and I’m happy to hear your comments, questions on this topic. It was a bit of a philosophical discussion, but I hope you understood the concrete steps and I look forward to hearing from you.

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